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Exhibit 4.1
AMENDMENT NUMBER 3
TO THE
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NUMBER 3 TO THE AMENDED AND RESTATED POOLING AND
SERVICING AGREEMENT, dated as of February 20, 1998, (this "Amendment") is
between ADVANTA NATIONAL BANK (formerly known as Advanta National Bank USA and
prior to that known as Colonial National Bank USA and successor in interest to
the former Advanta National Bank), a national banking association ("ANB"), as
Seller and Servicer, and BANKERS TRUST COMPANY, as Trustee (the "Trustee") under
the Amended and Restated Pooling and Servicing Agreement dated as of December 1,
1993, between ANB, as Seller and Servicer, and the Trustee, as amended and
restated on May 23, 1994 (as amended, supplemented and in effect on the date
hereof, the "Pooling and Servicing Agreement").
RECITALS
WHEREAS, ANB wishes to amend the Pooling and Servicing Agreement as
provided herein in accordance with Section 13.01(a) of the Pooling and Servicing
Agreement and the Trustee is willing to consent to such amendment upon the terms
provided for herein.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings specified in the Pooling and
Servicing Agreement. In addition, the following words and phrases shall have the
following meanings:
"Assignment and Assumption" shall mean the Assignment and Assumption
Agreement dated as of February 20, 1998 among ANB, Fleet and the Trustee.
"Fleet" shall mean Fleet Bank (RI), National Association, a national
banking association.
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SECTION 2. Amendment of Section 1.01. Two new definitions are hereby
added to Section 1.01 of the Pooling and Servicing Agreement, to be placed in
the proper alphabetical order, which shall read as follows:
"Amendment Number 3 Effective Date" shall mean the effective date
for Amendment Number 3 to this Agreement, which shall be February 20,
1998.
"Fleet" shall mean Fleet Bank (RI), National Association, a national
banking association, and its permitted successors and assigns.
SECTION 3. Amendment of Section 1.02. Section 1.02 of the Pooling
and Servicing Agreement is hereby amended by inserting subsection(g) immediately
following subsection (f). Subsection (g) shall read as follows:
(g) From and after the Amendment Number 3 Effective Date, each and
every reference to Colonial in this Agreement and each Supplement shall be
deleted and replaced with the defined term "Fleet."
SECTION 4. Amendment of Section 6.03. Subsection 6.03(d) of the
Pooling and Servicing Agreement is hereby amended in its entirety to read as
follows:
(d) The Bank Certificate (or any interest therein) may be
transferred to (x) a Person which is a member of the "affiliated group" of
which Fleet Financial Group, Inc. is the "common parent" (as such terms
are defined in Section 1504(a) of the Code) or (y) to Fleet in a servicing
transfer pursuant to Section 13.08; provided that (i) if any Series of
Investor Certificates are outstanding that were characterized as debt at
the time of their issuance, the Sellers shall have delivered to the
Trustee and each Rating Agency a Tax Opinion, dated the date of such
transfer, with respect thereto, and (ii) any such transferee shall be
deemed to be a "Seller" for purposes of Section 7.04 and 9.02.
SECTION 5. Amendment to Section 7.02. Subsection 7.02(b) of the
Pooling and Servicing Agreement is hereby amended in its entirety to read as
follows:
(b) the obligations of the Sellers hereunder shall not be assignable
nor shall any Person succeed to the obligations of the Sellers hereunder
except in each case in accordance with the provisions of the foregoing
paragraph or the provisions of Section 13.08.
SECTION 6. Amendment of Section 10.01. The phrase "except as
permitted by Section 8.02 or 8.07," appearing in the tenth line of subsection
10.01(b) of the Pooling and Servicing Agreement is hereby amended to read as
follows: "except as permitted by Section 8.02, 8.07 or 13.08,".
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SECTION 7. Amendment of Section 13.08. Section 13.08 of the Pooling
and Servicing Agreement is hereby amended in its entirety to read as follows:
Section 13.08. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 8.02 or as provided below,
this Agreement may not be assigned by the Servicer without the prior
consent of Holders of Investor Certificates evidencing not less than
66-2/3% of the Aggregate Investor Amount; provided, that, effective as of
the Amendment Number 3 Effective Date, Colonial may assign and delegate to
Fleet all of its rights and obligations hereunder as Seller and as
Servicer upon satisfaction of each of the following conditions: (i) Fleet
shall expressly assume, by an agreement supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
performance of every covenant and obligation of Colonial as Seller and
Servicer hereunder, (ii) Fleet shall deliver to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such assignment
and delegation complies with this Section and that such supplemental
agreement is a valid and binding obligation of Fleet enforceable against
Fleet in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally from time to
time in effect and except as such enforceability may be limited by general
principals of equity (whether considered in a suit at law or in equity),
and that all conditions precedent herein provided for in this Section
13.08 have been complied with and (iii) the Rating Agency Condition shall
have been satisfied with respect to such assignment and delegation.
SECTION 8. Amendment to Change Name of the Trust. From and after the
Effective Date, every reference in the Pooling and Servicing Agreement and in
any certificate or other document made or delivered pursuant thereto to the
ADVANTA Credit Card Master Trust II shall be amended to refer to the Fleet
Credit Card Master Trust II and the name of the Trust shall be the Fleet Credit
Card Master Trust II.
SECTION 9. Representation and Warranties of ANB. ANB represents
that, after giving effect to this Amendment and the execution and delivery by
each of the parties thereto of the Assignment and Assumption:
(a) Fleet shall be a Seller for the purpose of Section 7.04 and
Section 9.02 of the Pooling and Servicing Agreement; and
(b) The Seller Amount shall not be less than 2% of the total amount
of Principal Receivables after the exchange of the Bank Certificate pursuant to
Section 10(c) of this Amendment.
SECTION 10. Effectiveness. The amendment provided for by this
Amendment shall become effective on the date (the "Effective Date") that each
of the following events occur:
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(a) ANB shall have delivered to the Trustee an Officer's Certificate
from ANB stating that ANB reasonably believes that the execution and delivery of
this Amendment will not have an Adverse Effect.
(b) ANB shall have received from each Rating Agency written
confirmation that the execution and delivery of this Amendment and the
Assignment and Assumption will not result in the reduction or withdrawal of its
current rating of any outstanding Series or Class of Investor Certificates.
(c) ANB shall have surrendered the Bank Certificate to the Trustee
in exchange for a newly issued Bank Certificate modified to reflect Fleet's
ownership of the Seller's Interest with notice of such exchange given to each
Rating Agency.
(d) ANB shall have delivered to the Trustee and each Rating Agency a
Tax Opinion as to the transfer of an interest in the Bank Certificate to Fleet.
(e) The Servicer shall have delivered to the Trustee an Opinion of
Counsel as to the matters specified in Exhibit G-1 to the Pooling and Servicing
Agreement with respect to this Amendment.
(f) Each of the parties hereto shall have received counterparts of
this Amendment, duly executed by each of the parties hereto.
(g) Each of the parties hereto shall have received counterparts of
the Assignment and Assumption, duly executed by each of the parties thereto.
SECTION 11. Pooling and Servicing Agreement in Full Force and Effect
as Amended. Except as specifically amended hereby, all of the terms and
conditions of the Pooling and Servicing Agreement shall remain in full force and
effect. All references to the Pooling and Servicing Agreement in any other
document or instrument shall be deemed to mean such Pooling and Servicing
Agreement as amended by this Amendment. This Amendment shall not constitute a
novation of the Pooling and Servicing Agreement, but shall constitute an
amendment thereof. The parties hereto agree to be bound by the terms and
obligations of the Pooling and Servicing Agreement, as amended by this
Amendment, as though the terms and obligations of the Pooling and Servicing
Agreement were set forth herein.
SECTION 12. Counterparts. This Amendment may be executed in any
number of counterparts and by separate parties hereto on separate counterparts,
each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
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SECTION 13. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 14. Sequence of Amendments. If an Amendment Number 4 to the
Amended and Restated Pooling and Servicing Agreement ("Amendment Number 4")
shall be executed on the Amendment Number 3 Effective Date, this Amendment shall
be deemed to have been entered into and become effective after Amendment Number
4 shall have been entered into and become effective notwithstanding the
numerical sequence of this Amendment and Amendment Number 4.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
the Pooling and Servicing Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
ADVANTA NATIONAL BANK,
Seller and Servicer
By:
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Name:
Title:
BANKERS TRUST COMPANY,
Trustee
By:
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Name:
Title: